Citation Nr: 0903971
Decision Date: 02/04/09 Archive Date: 02/12/09
DOCKET NO. 03-19 446 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for emotional distress
(claimed as post-traumatic stress disorder (PTSD)).
2. Entitlement to service connection for residuals of a left
eye injury.
3. Entitlement to service connection for residuals of a
right knee injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Amy M. Smith, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1942 to
November 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2002 rating action of the
Department of Veterans Affairs Regional Office (RO) in
Jackson, Mississippi, which denied service connection for
residuals of a left eye injury, a right knee injury, and
dental trauma, and an April 2003 rating action that denied
service connection for emotional stress (claimed as PTSD).
The case has been advanced on the Board's docket.
This case was previously before the Board in January 2005
when the issue of entitlement to service connection for
dental trauma was denied, and the issues of service
connection for residuals of a left eye injury, a right knee
injury, and PTSD were remanded for additional evidentiary and
procedural development.
The issue of entitlement to service connection for PTSD is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDINGS OF FACT
1. No nexus between the veteran's active duty and his
currently-shown left eye disability has been demonstrated.
2. No nexus between the veteran's active duty and his
currently-shown right knee disability has been demonstrated.
CONCLUSIONS OF LAW
1. Service connection for residuals of a left eye injury is
not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.303 (2008).
2. Service connection for residuals of a left knee injury is
not warranted. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002);
38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties To Notify And To Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative of any information,
and any medical or lay evidence, that is necessary to
substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b). Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide in
accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini
v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice
should be provided prior to an initial unfavorable decision
on a claim by the agency of original jurisdiction (AOJ).
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The foregoing notice requirements were satisfied by a
November 2001 letter. In addition, following the letter, the
May 2003 statement of the case, and June 2004 and August 2008
supplemental statements of the case were issued, each of
which provided the veteran an additional 60 days to submit
more evidence. Thus, the Board finds that the purpose behind
the notice requirement has been satisfied because the veteran
has been afforded a meaningful opportunity to participate
effectively in the processing of his claims.
Also, to whatever extent the decision of the United States
Court of Appeals for Veterans Claims (Court) in Dingess v.
Nicholson, 19 Vet. App. 473 (2006), requires more extensive
notice in claims for compensation, e.g., as to potential
downstream issues such as assigning a disability rating or
effective date, the Board finds no prejudice to the appellant
in proceeding with the present decision. As will be
discussed in the following decision, the Board is denying
both of the veteran's service connection claims. As such, no
ratings or effective dates will be assigned.
Additionally, the Board finds that the duty to assist
provisions of the VCAA have been met in this case. All
relevant treatment records adequately identified by the
veteran have been obtained and associated with the claims
folder. Neither he nor his representative has identified any
other pertinent evidence, not already of record, which would
need to be obtained for a fair disposition of this appeal.
In this regard, the Board notes that, in accordance with the
January 2005 Board Remand, the RO requested records of
pertinent treatment at the VA Medical Center (VAMC) in
Jackson, Mississippi since April 2004. The record reflects
that in January 2008, the Jackson VAMC notified the RO that
it had no records for the veteran. In any event, it appears
that complete copies of all treatment at the VAMC in Memphis,
Tennessee since 2001 have been obtained and associated with
the claims file. Further, records of pertinent private
treatment, including from physicians W. Lamar and J. Rayner,
have been obtained.
Additionally, consistent with the January 2005 Board Remand,
the veteran underwent a VA joints examination in July 2008.
The Board acknowledges that he has not been accorded a VA
examination pertinent to his claim for service connection for
residuals of a left eye injury. However, as will be
discussed in the following decision, service medical records
are negative for complaints of, treatment for, or findings of
a left eye condition. Further, while available post-service
medical records reflect diagnoses of various left eye
conditions, there is no medical indication that these
conditions are related to service. Thus, a remand to accord
the veteran an opportunity to undergo a VA examination that
specifically addresses the etiology of the currently-shown
left eye disorder is not necessary. VA's duty to assist is
not invoked where "no reasonable possibility exists that
such assistance would aid in substantiating the claim."
Charles v. Principi, 16 Vet. App. 370 (2002) & 38 U.S.C.A.
§ 5103A(a)(2). See also &
McLendon v. Nicholson, 20 Vet. App. 79 (2006)
II. Standard Of Review
Once the evidence has been assembled, it is the Board's
responsibility to evaluate the record. 38 U.S.C.A.
§ 7104(a). When there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski,
1 Vet. App. 49, 53 (1990), the Court stated that "a veteran
need only demonstrate that there is an 'approximate balance
of positive and negative evidence' in order to prevail." To
deny a claim on its merits, the evidence must preponderate
against the claim. Alemany v. Brown, 9 Vet. App. 518, 519
(1996), citing Gilbert, 1 Vet. App. at 54.
III. General Laws And Regulations
Generally, service connection may be granted for any
disability resulting from injury suffered or disease
contracted in line of duty, or for aggravation in service of
a pre-existing injury or disease. 38 U.S.C.A. § 1110 (West
2002). Service connection may be established by
demonstrating that the disability was first manifested during
service and has continued since service to the present time
or by showing that a disability which pre-existed service was
aggravated during service. Service connection may be granted
for any disease diagnosed after discharge from service, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service.
38 C.F.R. § 3.303 (2008).
When a chronic disease such as arthritis becomes manifest to
a degree of 10 percent within one year of the veteran's
discharge from service, such disease shall be presumed to
have been incurred in service, even though there is no
evidence of such disease during the veteran's period of
service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§
3.307, 3.309.
The Board acknowledges that the veteran is competent to give
evidence about what he experienced; for example, he is
competent to report that he experiences certain symptoms.
See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).
Competency, however, must be distinguished from weight and
credibility, which are factual determinations going to the
probative value of the evidence. See Rucker v. Brown, 10
Vet. App. 67, 74 (1997). He is not, however, competent to
diagnose any medical disorder or render an opinion as to the
cause or etiology of any current disorder because he does not
have the requisite medical knowledge or training.
See Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
IV. Analysis
A. Residuals Of A Left Eye Injury
The veteran contends that he injured his left eye when a
potato peeler "blew up" and struck him on the left side of
his face. He says he was nearly blinded by the incident. He
claims he injured his left eye a second time when he was
struck in the face by a locker door. He indicates that he
received treatment for these injuries at an Army base in Iwo
Jima.
The service medical records are negative for complaints or
treatment of a left eye injury or any such residuals, with
the November 1945 discharge examination showing "normal"
eyes (including pupils, distant vision, and binocular vision)
with no "disease or anatomical defects."
The earliest evidence of record describing a left eye
condition is a January 2001 report of private treatment from
a doctor J. Rayner, which indicates cataracts and optic
atrophy of the left eye. A September 2001 record from that
physician notes a "history of injury in WWII."
An April 2008 VA opthamology report indicates "left eye
optic neuropathy from past trauma."
That the veteran currently has a left eye disability for VA
compensation purposes is not in dispute. Rather, the
question to be resolved is whether this disability can be
related to the veteran's period of service from 1942 to 1945.
Here, there is a lengthy period of time during which there is
no contemporaneous evidence of record as to the condition of
the veteran's left eye. This lengthy period without post-
service treatment weighs heavily against the claim. Maxson
v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). For the veteran to
prevail on his claim, the 57-year gap between his service and
the initial diagnosis of a left eye disorder must be
overcome.
That has not occurred in this case. There is no
contemporaneous evidence of record showing that the veteran
had a left eye condition upon discharge from service; rather
the report of his medical examination at discharge shows he
had normal eyes, free of disease or defect at that time. In
fact, the earliest document showing the presence of a left
eye disability is in 2001; and, even then, the disability was
not attributed to service. In this regard, the Board notes
that while the April 2008 VA opthamology report relates the
left eye optic neuropathy to past trauma, it does not
specifically attribute the condition to the veteran's period
of service, or to any event or injury therein. Likewise,
although a September 2001 record from doctor Rayner, notes a
"history of injury in WWII," it does not explicitly suggest
a link between the veteran's left eye problems and service.
Although the Board acknowledges the veteran's claims of left
eye injuries and related treatment in service, given the lack
of medical evidence of a left eye condition in service, or
for decades after service, and the absence of a specific
medical opinion suggesting a link between the veteran's
service and left eye condition, the greater weight of the
evidence is against the claim.
Accordingly, service connection is not warranted, and the
appeal is denied.
B. Residuals Of A Right Knee Injury
The veteran maintains that he injured his right knee when his
leg became twisted in deck ropes, causing it to hurt and
swell. He claims that he also received treatment for this
injury at an Army base in Iwo Jima, and that he has had to
wear a brace on his leg since.
The service medical records are negative for complaints or
treatment of a right knee injury or any such residuals.
Indeed, the November 1945 discharge examination indicates
"normal" spine and extremities (including bones, joints,
muscles, and feet).
The earliest evidence of record describing a right knee
condition is a July 1996 report of private treatment by a
doctor W. Lamar, which reflects complaints of pain and
effusion in the right knee with a history of several steroid
injections. X-rays at that time showed "marked
osteoarthritic changes with medial gonarthrosis." A knee
brace was ordered. A November 2003 report by the same
physician reflects diagnosis of post-traumatic arthritis of
the right knee (apparently based on the veteran's report of
in-service knee injury).
VA treatment reports reflect X-ray findings of severe
narrowing of the medial and patellofemoral joint space, and a
diagnosis of severe osteoarthritis of the right knee.
In accordance with the January 2005 Board Remand, the veteran
underwent a VA joints examination in July 2008, the purpose
of which was to determine the etiology of any currently-shown
right knee disorder. The claims file was reviewed in
conjunction with the examination. The veteran described the
claimed in-service injury and stated that while he was
evaluated by Medical Corps at the time, no surgery was
performed. He reported using a brace, but did not wear it on
the examination day. Clinical evaluation revealed gross
varus deformity, limitation of motion, and tenderness to
palpation. It was noted that X-rays of the right knee, dated
July 2008, showed no fracture, dislocation or bony
destructive lesion, but did reveal moderate joint space
narrowing, as well as moderate patellofemoral arthritis and
degenerative changes. The diagnosis was degenerative joint
disease of the right knee.
With respect to an etiological relationship between military
service and the currently-shown degenerative joint disease,
the examiner determined that it was less likely than not that
this condition is related to service. In reaching this
determination, the examiner noted that while the degenerative
joint disease would be related to post-traumatic arthritis if
there had been an osteochondral defect or fracture during
service, there is no indication of either at that time. The
examiner also noted the veteran's age, and indicated the
right knee condition was more likely related to this.
For the veteran to prevail on his claim, he must show either
continuity of symptomatology or a medical opinion linking his
currently-shown right knee disorder to events in service.
Neither has occurred in this case. There is no evidence of
record showing that the veteran had a knee condition during
service. There is also no evidence whatsoever reflecting
right knee arthritis within one year of service (to trigger
the application of the legal presumption of service
connection for chronic disease). The earliest document
reporting the presence of a knee condition is in 1996. This
lengthy period without post-service treatment (e.g., 52 years
after separation from service) weighs heavily against the
claim. Moreover, while the veteran maintains that he has had
to wear a leg brace since the claimed in-service injury, the
earliest evidence of a brace is in 1996, which further
undermines his claim of right knee problems since service.
Additionally, while the Board acknowledges the private
diagnosis of post-traumatic arthritis, the Board finds the VA
examiner's finding of degenerative joint disease which is
unrelated to service to be more probative. In reaching this
determination, the Board notes that Doctor Lamar's initial
findings in 1996 indicate only osteoarthritic changes (a
finding consistent with VA treatment and examination
reports), and not until 2003, subsequent to the veteran's
service connection claim, did the diagnosis change to post-
traumatic arthritis. In this regard, the Board also notes
that there is no indication that the doctor had access to the
claims file, or any records for that matter, which would have
revealed no documented right knee injury or treatment in
service, and no post-service treatment for decades after
separation from service. Additionally, in offering the
diagnosis of post-traumatic arthritis, the doctor did not
address the veteran's age and its role in his right knee
condition.
For these reasons, the Board finds that the preponderance of
the evidence is against the veteran's claim for service
connection for residuals of a right knee injury. The appeal
is denied.
ORDER
Service connection for residuals of a left eye injury is
denied.
Service connection for residuals of a right knee injury is
denied.
REMAND
Upon review of the claims file, the Board finds that this
matter must again be remanded for additional development and
adjudication, even though such action will, regrettably,
further delay a decision in this appeal.
The veteran has reported numerous stressful events in
service; however, his primary stressors are being attacked by
Japanese warplanes, participating in the rescue of a downed
U.S. warplane (a B 29), discovering the dead body of a friend
named "Walker," and seeing countless dead bodies while
visiting Iwo Jima. He has consistently asserted that these
events occurred while aboard the "YTB 376 tug boat." (The
Board notes that despite multiple requests by the RO, the
veteran has not provided further specific information
regarding these events, including dates and/or full names).
At the outset, the Board notes that the veteran has received
multiple VA and private diagnoses of PTSD, most recently in
July 2008, by a VA examiner in accordance with the January
2005 Board remand.
In March 2006, as the Board requested, the RO contacted the
U.S. Army & Joint Services Records Research Center (JSRRC),
formerly the U.S. Armed Services Center for United Records
Research (CURR), in an attempt to verify the veteran's
reported stressors while assigned to "YTB 376 TUGBOAT." In
December 2007, the RO again contacted JSRRC, and requested
research of the reported stressors, this time with the
additional assignment of "U.S.S. ORVETTA." (It does not
appear, however, that the RO enclosed the veteran's record of
assignments and other service personnel records in either of
these requests, as instructed in the Remand.) Subsequently,
JSRRC issued a response informing the RO that "[w]e are
unable to locate information documenting that the ORVETTA was
fired upon or that the ship was evacuated. We are also
unable to verify that [the veteran] assisted in rescues or
that he witnessed a plane shot down." Importantly, however,
this JSRRC response does not indicate an attempt to verify
the reported stressors while the veteran was assigned to
"YTB 376 TUGBOAT."
Service personnel records indicate that the veteran was
assigned to the "USS WINNETKA YTB-376" from June 1944 to
September 1944, and apparently again in February 1945 for an
unknown period of time (though presumably until very near his
service discharge). It may be, however, the veteran remained
assigned to the WINNETKA between September 1944 and February
1945, since the record shows his assignment to the USS
ORVETTA during this period was "For administrative purposes
only." This entry suggests the veteran may not have been
physically present on the ORVETTA. On remand, the RO should
attempt to verify the claimed stressors using the foregoing
assignment information and timeframes.
Accordingly, the case is REMANDED for the following action:
1. The RO should again contact the JSRRC,
or other appropriate entity, and
request them to specifically ascertain
whether the veteran's assigned ship,
the "USS WINNETKA YTB-376," was fired
upon by Japanese warplanes during the
period from June 1944 to November 1945,
and whether members of that ships crew
would have been in a position to assist
in the rescue of a downed U.S.
warplane, or witness dead bodies at Iwo
Jima, and whether a crewmember, by the
name of "Walker," was killed or
injured during this same time period.
The information contained in the
veteran's service personnel records
reflecting his ship assignments should
be provided along with that request.
All correspondence should be fully
documented in the claims file.
2. After associating with the claims
folder all available records received
pursuant to the above-requested
development, the RO should again review
the record. If the benefit sought on
appeal remains denied, the veteran and
his representative should be furnished
a supplemental statement of the case
and given the opportunity to respond
thereto.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112
(West Supp. 2008).
______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs